Authenticating Open Access: “We must put in more rigour into the kind and quality of publications that come out through open access projects…” says Professor Shamnad Basheer, Founder, SpicyIP blog

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JurisOpen Network PublishingMarch 15, 2018Comments are off for this post.

Many topical and emerging questions surround the current state and future of open access scholarly publishing in law and related disciplines. To answer some of these questions, JurisOpen interviewed Professor (Dr) Shamnad Basheer — a globally recognized intellectual property law expert based in Bangalore, India who has demonstrated his incessant commitment to democratizing the law, particularly intellectual property law, through his blog — SpicyIP. He has also sought to foster access to legal education by enabling underprivileged students to gain admission into the most prestigious law schools in India through his non-profit initiative, namely IDIA (Increasing Diversity by Increasing Access to Legal Education) for which he won the prestigious Infosys Prize in 2014. Here are the excerpts from this interview:

Professor Basheer: “We must foster effective quality control mechanisms so that open access publications comprise data and scholarship of the highest quality and integrity — that’s critical to the academic endeavour.”

Question 1. Even as law library guides strongly recommend the use of secondary legal materials for correctly locating and understanding primary legal authorities, the conventional status of secondary legal materials as merely persuasive authorities in law courts may tend to undervalue their indispensable import in any legal research process. To what extent do you think works of secondary legal authority (including law-review articles, Restatements of the Law and treatises) significantly aid or supplement the understanding of primary authorities in law, whether to facilitate academic scholarship or to enable access to justice for any member of the public?

Professor Basheer: A great question! In the world of law, secondary legal materials are absolutely important because most primary legal materials, such as statutes and case-laws, can be very difficult to understand, even for lawyers. I always tell my students that the key challenge to access to law in India is knowing what precisely is the law. If we look at the jurisprudence from our courts, few judges write in a language which is lucid and digestible for the common man. Rarely will you find a short and succinct judgment: rather, you’re more likely to find decisions that are dense and copious, citing a plethora of earlier cases and rehashing all of the counsels’ arguments, without much original analysis or judgment. You take the Supreme Court ruling of 2016 on the petition for decriminalization of defamation: it ran into some 100s of pages and contained language so dense that Tunku Varadarajan (former editor of Newsweek Global and Newsweek International) said it was one of the worst he had ever read! Or even the ‘Ayodhya’ decision which ran into some 10,000 odd pages! In such cases, finding out the crux of the decision is very difficult. With statutes, even worse so! Take the Biological Diversity Act, 2002: I’ve never seen such a poorly drafted legislation with so much of ambiguity that it’s literally a goldmine for lawyers who can spend countless hours trying to split hairs on every possible word in there!

So, in countries where judges write more lucid decisions and the legislations are relatively clearer, debates may hinge on the analysis of the law and how to make them better. Whereas in India, we’re still struggling with: pray, what precisely is the law? How is the common man supposed to gain legal literacy? After all, the theory is that ignorance of the law is no excuse! But if it’s mighty difficult to locate the law in the first place, what does the common man do? One way to redress this stark deficiency in our justice system is by encouraging the growth of secondary legal materials which explain and exemplify primary legal materials in a language understandable by the common man: I think open access repositories like JurisOpen will be of huge importance in this regard.

In fact, this is one of the main reasons behind the creation of SpicyIP way back in 2005: Intellectual Property (IP) is a sort of priesthood or clergy, with very few understanding the different esoteric terms that we use, making it mighty difficult for not just the common man, but even the ordinary lawyer to understand. I, therefore, began the blog to help deconstruct IP and spell it out in a language accessible to all; to offer lucid and short commentaries on cases, legislations and policies such that the wider public could engage in IP debates. IP is after all about the knowledge economy. And the knowledge economy is way too important to be left to IP lawyers alone!

Question 2. Computerized legal research has certainly made access to both primary and secondary legal information more efficient than ever before, but it generally comes at a high cost. Nevertheless, surveys have found researchers to be far more satisfied with fee-based resources despite the increasing number of free legal websites. Do you think authenticity or reliability of the content on many, if not all, of these websites is the issue? What other free alternative facilities (government-funded or private) exist or should exist to provide quality access to legal research and scholarship?

Professor Basheer: Yes, that’s true to some extent, but I would say that’s slowly changing.

Take the case of SpicyIP. We were very clear that we wanted to simplify IP and provide our assessment of key IP issues in an open access format, but not at the cost of quality and nuance. I wanted to break this general assumption that just because something is free, it will necessarily be sub-standard. And there are plenty of examples out there of open access legal websites and blogs that offer top quality content — all for free!

To answer the second part of your question, academic research at public universities (and a few private universities as well) is heavily subsidized by government funds. The public is therefore entitled to access this research. If they are made to pay to access this research, it amounts to a kind of double taxation: the first tax being the one that enables the publicly funded research in the first place and the second tax to access the results of that research in paid databases! This is precisely why there is legislation in many countries mandating researchers using public funds to openly publish their research findings. The US is a good example, where the NIH Public Access Policy now mandates that scientists using NIH (National Institutes of Health) funding have to post a version of their published research on PubMed Central – a self-archiving open access repository, within 12 months of the original publication (typically in a paid journal). We must have similar norms in India as well and the state has to play a significant role in this endeavour.

Also today, we have a ‘paying-for-open-access’ model wherein open access journals require authors to share the costs of publication by paying what is called an ‘Article Processing Charge’ (or the ‘APC’) to the publisher and is now often built into the initial research funding proposal by a researcher who wishes to publish in reputed open access journals.

Question 3. The open access (OA) movement in scholarly communication has been around for more than a dozen years, but is yet to show any vital indications for steady success: John Wenzler, the Dean of Libraries at the California State University, has attributed its slow growth to a lack of crucial consensus among scholars and institutions to publish and share openly on a common platform. The Collaborative Knowledge Foundation in the United States had earlier this year released their statement expressing strong desirability for a centralized mechanism to standardize all research communication services for preprints to make them efficient, reliable and persistent. How much do you appreciate this conception of building a shared online collection of scholarly resources to benefit the advancement of open access in legal scholarship?

Professor Basheer: The open access movement is essentially a series of informal/decentralized networks between people who are passionate about selflessly promoting access to free knowledge: Open Source Software (OSS) and Wikipedia are big examples. You need different people coming together with different approaches and perspectives: nobody gets it right! I mean, look at Alexandra Elbakyan (the software developer and neurotechnology researcher from Kazakhstan) who’s taken on all the major Science publishers of the world by illegally releasing millions of proprietary journal articles on a privately held website (called Sci-Hub) for free online access with the radical justification that such articles were otherwise being sold at obnoxiously exorbitant prices, effectively disabling scientists in poor developing countries from having the requisite access.

Question 4. Many open access evangelists are now endorsing the adoption of preprints (i.e., non-refereed or non-peer reviewed publications) in scholarly communication to reduce the time to publication and accelerate the sharing and consumption of scholarly research and data. However, Kent Anderson, the founder of Scholarly Kitchen and a recognized expert on the subject, has criticized this rapid publication practice as being more driven by “competitive forces as well as the tempting capabilities of Internet publishing” and thriving on a compromise with accuracy and reliability. How do you harmonize this seeming conflict between quantity and quality in scholarly publishing, especially in the legal discipline where citations and the authority of the text are always pivotal?

Professor Basheer: My own view is that once we get more infusion of funds into open access projects, we can ensure more rigorous peer-reviewing processes. That said, in the academic community, peer-review is generally free: I mean, I often peer-review books sent to me by OUP (Oxford University Press) free of charge even though OUP publishes and sells that book to make profits. So, in a way, we are subsidizing the publishers, and if we can do it for paid publishers, I don’t see why we can’t do it for open access publishers.

We must put in more rigour into the kind and quality of publications that come out through open access projects. We must foster effective quality control mechanisms so that open access publications comprise data and scholarship of the highest quality and integrity — that’s critical to the academic endeavour.

Academics will only cite a publication if they believe the corresponding source to be credible: if I know that a certain web repository stands for authentic content and has a reputation for quality, I will certainly cite from that repository — be it free or paid. Yet, there tends to be a sort of hierarchy with references, given the reputation associated with certain kinds of publications and journals: for example, legal researchers are more likely to refer a Harvard Law Review article than a Connecticut Law Review article simply because there is a greater reputational benefit associated with the former.

Question 5. JurisOpen intends to serve as an open access digital research repository of authentic & reliable secondary legal materials: this is an earnest effort to gradually, or perhaps very gradually, but steadily, bring down the cost of quality secondary legal research in order to minimize the overall cost of legal research. JurisOpen is yet at a nascent stage of its development, currently in the phase of defining its core schemes to achieve its open access mission objectives: what would be your specific recommendations, particularly in terms of the publishing modalities that JurisOpen should adopt to most effectively facilitate the creation and dissemination of high-quality legal scholarship?

Professor Basheer: Law Reviews typically publish articles which are laboriously long and extensively footnoted. What we really need are more spaces that permit shorter, punchier pieces of, say, 3000-4000 words explaining complex legal issues in a language and style which is more accessible to the common man, as opposed to jargon-prone academics and researchers.

Moreover, there are innumerable research projects being written by law students as part of their academic coursework all over the world. You can try to convert them into citable publications.

This interview was conducted by Raj Shekhar, Founder and Executive Editor, JurisOpen Network Publishing on December 30, 2017. Readers can send their views and comments on editor@jurisopen.org.